Smith v. Russell , 37 Tex. 247 ( 1873 )

Walker, J.

Some controversy is found in the briefs as to the real nature and character of this suit. By the appellants it is claimed that the action is merely one of trespass vi et armis, and that in such an action the defendants are attempting, without the necessary pleadings and averments, to impeach and cancel the plaintiff’s patent. If this were really the case, we should not hesitate to hold with the numerous authorities cited, that the patent could not be so impeached, and that a patent legally issued by the sovereign power of the Government, and duly recorded, could not be collaterally impeached and canceled; but, although the pleadings are somewhat peculiar, and the petition is not in strict conformity with the usual form of petition, yet, we are of opinion that the main question sought to be tried and settled, may be reached under the pleadings in the case.

Smith brought his action against Russell and others, occupying tenants; Williamson and wife intervene and defend the action. Several questions raised in the pleadings are, as if by mutual consent, abandoned, and the controversy is narrowed down to an inquiry as to the true boundary line between the Maxey half-league grant, owned by Smith, and the sectional surveys, owned by Mrs. Williamson. The Maxey survey is dated May 10th, 1839, the patent issued February 20th, 1851. The Williamson surveys are dated May 10th and 29th, and all the sections are patented from one to three days before the Maxey patent issued.

The true location of the south-east corner of the Maxey survey determines this controversy, and to this point the attention both of the court and jury below appears to have been directed. The sectional surveys and patents call for the Maxey line and abut upon it. The line runs due north from the south-east comer of the Maxey survey, wherever that may be. Between the boundary lines as claimed by the opposing parties, there would be a surplus of full six hundred acres of land, and, as near as we can gather from the maps, it would lie in a form nearly six hundred varas in width, and about six thousand varas in length. It appears that each party has been in possession of a part of this land, and it might have been better for them both, if not for the State, if they could have divided it peaceably among themselves.

Accordingly as the south-east corner of the Maxey survey is located, must this land fall to one or the other of the parties. If courts were allowed to sympathize with litigants, we should find no very loud demand upon our sympathy for either party in this suit. Williamson contends that the disputed corner was located, by the original survey, at a certain mot or cluster of bushes. The appellants claim that the court below erred in permitting Williamson to prove a mistake in the Maxey patent, in one of the calls for distance, which is the first call in the line on the bay shore, and that this call in the patent differs some nine hundred and fifty varas from the call in the original field-notes on file in the General Land Office. The defendants were permitted to offer in evidence a certified photographic copy of the original field-notes. By this copy the length of the line is one hundred and five and five-tenths (105^) varas in length; while the Maxey patent calls for a line one thousand and fifty-five varas in length.

The defendants were also permitted to prove that upon the theory of the shorter line being the true line, the Maxey patent would give the plaintiff the true and full quantity of land called for in the grant; that its form would be of equal length in front and rear, and that the other surveys, made about the same time, by the same surveyor, would harmonize in form and quantity; but, conceding the call in the Maxey patent for one thousand and fifty-five varas to be correct, then the survey of the Maxey grant would be nine hundred and fifty varas wider on the one end than on the other, and would contain an excess of six or eight hundred acres of land more than the patent calls for, and that upon this theory the abutting surveys would run into the marshes and deep waters of the bay. They also offered evidence tos prove that by taking 105^ varas to be the true measurement of the line, the southeast corner would be so located that the courses and distances called for in the Maxey patent itself would harmonize, and that the corner would then be at the mot of young timber. The court also permitted the defendants to prove that one of the original chain-carriers, who was dead at the time of the trial, had pointed out to the witness the mot of young timber as the place of the corner. The defendants also offered evidence to prove that the plaintiff himself, in 1857 or 1858, had recognized the corner at the mot of young timber, and that from that corner he and "Williamson had run a line due north, for the purpose of fixing the boundary or dividing line between their lands.

To all this evidence the plaintiff objected, contending that the calls of the Maxey patent for courses and distances must govern, and that no mistake could be shown to vary or contradict those calls. The court overruled the exceptions, admitting the evidence; and these several rulings are assigned as 'errors. A motion for a new trial was overruled, and the cause is appealed to this court.

In the case of Urquhart v. Burleson, 6 Texas R., 502, 512, and 513; in Dalby v. Booth, 16 Texas R., 565, 566; and in Bolton v. Lann, 16 Texas R., 112, as well as in subsequent cases, most of these questions have been settled. The authorities are too numerous and familiar to the profession to require citation.

It is a well-settled rule of law that where natural or well-known artificial monuments or objects are called for in a deed or patent, the calls for course and distance, if inconsistent with them, must be disregarded; and that monuments and lines marked upon the ground may be identified by parol evidence. Even the common understanding of the surrounding community may be proved as to the identity of such monuments and lines, and the declarations of deceased witnesses may be proved, to fix the location of comers and lines. (See Stroud v. Springfield, 28 Texas, 665; Welder v. Carroll, 29 Texas, 332, and authorities cited; and subsequent cases.)

It was also competent to prove that the plaintiff himself had recognized the corner pointed out hy the deceased chain-carrier to the witness Egery, showing it to Williamson as the true corner. Many authorities might he cited, holding that Smith and Williamson would both he bound and concluded hy a line mutually recognized and established, though it were not the true original line. (See George v. Thomas, 16 Texas, 89; Dalby v. Booth, 16 Texas, 566; Stuart v. Baker, 17 Texas, 411; Hoxey v. Olay, 20 Texas, 586, and subsequent eases.)

An objection to the whole of the survey, where a part of it is admitted in evidence, is not well taken. To admit that portion of the survey which agreed with the calls in the Maxey patent, gave the defendants the right, for the purpose of contradicting or explaining the patent, to introduce the whole survey.

We are unable to discover any material error in the rulings of the court; and the verdict of the jury seems to us to he well supported by the evidence. The argument which claims that there has been fraudulent and criminal tampering with the original field-notes of the Maxey survey, in the General Land Office, is too bold and incautious, unless better supported by evidence.

Under the view we have thus taken of this case, the judgment of the District Court is affirmed.

Affirmed.